Appeal No.	 EAT/935/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 6 April 2000

Before
MR COMMISSIONER HOWELL QC
MR P R A JACQUES CBE
MR R N STRAKER

MRS HEATHER POTTAGE	APPELLANT

STONHAM HOUSING ASSOCIATION LTD	RESPONDENT

Transcript of Proceedings

FULL HEARING

Revised

	APPEARANCES

For the Appellant	MS F MORRIS
(of Counsel)
Citizen Advice Bereau
Dugald Drumond Street
Portsmouth
PO1 2BB	
For the Respondent	MR M M BARKLEM
(of Counsel)
Messrs Sherwin Oliver
The Old Manor House
Wickham Road
Fareham
Hampshire  PO16 7AR	

MR COMMISSIONER HOWELL QC
1.	In this appeal Mrs Heather Pottage, seeks to have set aside the decision of the Southampton Employment Tribunal, set out in extended reasons sent to the parties on 17 June 1999 which we have at pages 3-8 of appeal file, following a hearing on 30 April 1999.  The proceedings in which that hearing took place were proceedings launched by Mrs Pottage against her former employers Stonham Housing Association Ltd by an Origination Application dated 4 February 1999 in which she had claimed remedies for unfair dismissal and disability discrimination on various grounds connected with the termination of her employment with the Housing Association.  

2.	She had been in that employment for something over ten years, doing the incredibly difficult and valuable work of a project worker in charge of a group of homes for persons released into the community while still suffering from or recovering from mental illness.  Her particular job had been looking after people suffering from schizophrenia.  In this she appears to have been left to cope largely single handed, and the human cost of having to cope on a day to day basis with that kind of situation under the Care in the Community arrangements is clearly demonstrated by what happened to Mrs Pottage in this case.  She was found to be suffering from a depressive illness, and had to take sick leave before her employment was eventually brought to an end.  At the time of the tribunal hearing she was still suffering from the effects of her illness and taking medication for it prescribed by her general practitioner.  However an earlier course of counselling she had received from the community mental health team had by that time come to an end, and she was more able to cope than she initially had been with the business of every day living, although the question of returning to such a stressful occupation as she had been previously engaged in was, according to the evidence she gave to the tribunal, one that could not be considered.  

3.	The hearing before the tribunal on 30 April 1999 was concerned only with one single preliminary point which had been directed to be dealt with separately in the proceedings, namely whether the depressive illness from which she had been and was still suffering counted or did not count as a “disability” within S.1 of the Disciplinary and Discrimination Act 1995.  We have been told that the remainder of the Tribunal proceedings on the question of unfair dismissal have still not been dealt with and are effectively stalled pending the outcome of this present appeal.  The decision of the tribunal was that the illness from which the applicant was suffering, and the degree of effect it had on her ability to manage normal day-to-day activities, did not meet the statutory test so as to count as disability under the relevant legislation at all.  

4.	The legislation itself has already been summarised in a decision of the Employment Appeal Tribunal recently headed by the former president Mr Justice Morison in the case of Goodwin v the Patent Office [1999] IRLR 4 to which we have been referred, and accordingly it is not necessary for us to repeat the terms of the legislation in any great detail.  The only provisions to which it is necessary to refer on the present purpose are first section.1 under which a person is defined as having a disability for the purposes of the act if, subject to the provisions of Schedule 1, he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.  It is also to be noted that under section 3 the Secretary of State is given a statutory role in prescribing guidance to which a Tribunal or Court determining questions of whether a person’s impairment either has a “substantial” adverse effect or whether such an effect is a “long-term” effect must have regard.  Under the 1st schedule supplementary provisions are made about what is to count and what is not to count as a mental impairment, what are to count and not count as long-term effects and specifically under paragraph 4 of the schedule, what are to be taken into account as “normal day-to-day activities” in testing whether a person’s degree of impairment impinges on their ability to cope with such activities.  Paragraph 6 provides that an impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities but for the fact that measures are being to treat or correct it, is to be treated as having that effect; and by paragraph 6 (2) “measures” for that propose includes in particular medical treatment. 

5.	We were referred to various provisions in the guidance issued by the Secretary of State but beyond noting that the terms of that guidance makes it apparent that a condition such as suffered by this lady is capable of being regarded as a disability for purposes of the act, we do not need to refer to that specifically.  All this depends on questions of fact and degree, as to whether the actual nature and severity of the impairment suffered by the particular person, as established by the facts to the satisfaction of the Tribunal, does or not does get over the thresholds imposed by the way the legislation is expressed.  The Tribunal’s extended reasons after the hearing on 13 April 1999 set out a number of matters of fact, which they recorded as findings made by themselves on the balance of probabilities.  These were based very largely on the evidence put before them by the applicant as to the degree of interference with her own day-to-day activities she was suffering as a result of her depressive illness, which manifested itself in the form in particular of anxiety and difficulties in coping with interaction with other people. 

6.	Having set out fully and carefully the facts and the difficulties she had explained to them and referred also to some fairly scant medical evidence she had provided (in the form of a letter from her own General Practitioner about the current impact of her illness on her, which was attributed principally to stress at work), the Tribunal then went on to set out, again in considerable detail, the questions they were required to address for the purpose of determining the various difficult questions of degree they had to decide on the evidence.  The actual decision of the Tribunal is stated, in fairly short terms only, in the final paragraph of their extended reasons as follows:
22. “The onus of proof is on the Applicant.  The standard of proof is the balance of probabilities.  For her to succeed we must find that it is more likely than not, that the impairment relied upon by the Applicant, namely depression, has a substantial adverse effect on her ability to carry out normal day to day activities.  Having carefully considered all the evidence we are not persuaded that this is the case.  The Applicant suffers some degree of impairment due to depression.  However, based on the evidence before us, it is our unanimous decision that the degree of impairment cannot be described as having a substantial adverse effect on normal day-to-day activities.  The impairment forming the basis of the Applicant’s complaint does not constitute a disability within the meaning of the Disability Discrimination Act 1995 and this complaint is dismissed”
When the matter came before the Employment Appeal Tribunal preliminary hearing the court then considering it, as shown by the judgment of 19 October 1999, directed that the appeal should come forward to the present full hearing on the ground that they were satisfied there was at least an argument that it was not apparent on the face of that decision which of the Tribunal’s findings of fact led the Tribunal to the conclusion thus expressed.  As His Honour Judge Altman’s judgment of 19 October 1999 records:
“The facts the Tribunal found, as one would expect do not all go one way.  On the one hand there is a continued certification of inability to work which is evidence in relation to day to day activities.  On the other hand the Tribunal traced carefully the actual day to day activities which they emmunerated which had been impaired.”

7.	We are therefore faced with what I think on all sides is accepted as being a difficult question of degree for us, in assessing whether the Employment Tribunal had or had not adequately set out their reasons for reaching the conclusion they did on the even more difficult questions of fact and degree with which they were faced on the evidence before them.  It is common ground between Miss Morris, who appeared before us on behalf of the Appellant, and Mr Barklem who appeared for the Respondents, that the onus of proof in such cases to establish a case of disability discrimination is of course in the normal way on the applicant who asserts that he or she has suffered such discrimination contrary to the legislation.  

8.	There was some discussion in the course of the argument as to the nature of the role of the Tribunal considering a case of disability discrimination, in the light of one paragraph in the judgment of Morison J. in Goodwin v the Patent Office [1999] IRLR 4 case paragraph 21 where he referred to the role of the Industrial Tribunal containing “an inquisitorial element as rule 9 of their rules of procedure indicates” in such cases.  The example that judgment goes on to give of the kind of intervention that a Tribunal may and should properly engage in on the consideration of the facts of a disability discrimination case makes it clear, in our judgment, that the reference to the Tribunal’s role “containing an inquisitorial element” means no more than the Tribunal is obliged as indeed is expressly recorded in regulation 9 of the Employment Tribunal rules to conduct the hearing in a fair and balanced manner without regarding itself as simply refereeing a dispute between opposing professionals, but to intervene and make its own enquiries in the course of the hearing of such persons appearing before it and such witnesses as are called before it as it considers appropriate.  

9.	That does not in our judgment extend the role of the Tribunal as far as placing on it the duty to conduct a free-standing enquiry of its own requiring it to attempt to obtain further evidence beyond that placed in front of it on the issues raised before it.  The present Tribunal appears to us to have given careful consideration to all the relevant issues placed in front of it and to have properly directed themselves to the questions that needed to be answered in assessing a case of this nature as they expressly set out.  Therefore if the question was whether the actual conclusion they reached was a proper one having regard to the evidence and contentions before them as recorded in the terms of their decision, we would unanimously be of the view that no ground for interfering with the conclusion reached had been shown.  

10.	But in addition to the question of whether the decision itself is a proper one having regard to the evidence, a further question has to be considered because of the duty of the Tribunal, in the stated reasons issued to the parties, to give them a reasonable explanation not only of what the conclusions of the Tribunal are on the very difficult questions of fact and degree entrusted to them by the legislation, but also of the reasoning process which has led the Tribunal to reach their conclusion.

11.	The Employment Appeal Tribunal rightly adopts a robust and practical approach to assessing the adequacy or otherwise of stated reasons by Tribunals on questions of fact, which are for them and not for the Employment Appeal Tribunal to determine; and it is not for this court to subject this or any other Employment Tribunal’s reasons to an over-refined process of critical analysis, or to assume that any error of law has been committed merely because every single piece of material evidence may not be referred to in the Tribunal’s stated reasons.  However at the end of the day, some indication of the reasoning process is required; and after hearing all the arguments which have been well and comprehensively put to us on both sides the majority of us have reached the conclusion that the Tribunal’s reasons, as in embodied in paragraph 22 of the extended statements of reasons for this case, do err too much on the side of being a mere statement of the conclusion reached, as distinct from a sufficiently reasoned explanation.  That the Applicant was entitled to have, to enable her and her representative to have a reasonable understanding of the basis on which the evidence had failed to satisfy the Tribunal that the statutory threshold had been crossed.  In particular, the majority of us are concerned at an apparent lack of clarity in the Tribunal’s stated reasoning on the question of whether they had or had not addressed, and made specific findings on, what the effects of the Applicants condition as regards the nature and degree of impairment suffered by her would have been if the effects of the medication she was still taking had been left out of the reckoning.  That is of course a fiendishly difficult mental exercise but one which it appears to us a Tribunal is obliged to attempt by the specific provisions of paragraph 6 of the 1st schedule to the Act to which we have already referred.  

12.	Mr Straker on the other hand considers that the Tribunal’s reasons are in fact sufficiently apparent from a fair reading of the decision taken as a whole, and would not for his own part have allowed this appeal on the grounds which have appealed to the majority.

13.	The majority decision of this Tribunal is accordingly that the appeal is allowed, the decision of the Employment Tribunal given after the hearing on 30 April 1999 is set aside and the issue of whether the applicant was at the material time suffering from a disability within the meaning of section.1 of the Disability Discrimination Act 1995 is remitted to the Tribunal for reconsideration.  That means that the Applicant will have an opportunity of considering with her adviser, whether any further medical or other evidence can or should be provided to the Tribunal when it deals again with the disability issue.  It also means that there will be the opportunity, which we think it will be practical and sensible to be taken, for the whole case including all the unfair dismissal and other issues which are at present stayed to be considered and dealt with by a single Tribunal hearing all the evidence and submissions at once so that there can be a proper conclusion of this case.  That course both counsel have submitted to us would be useful and desirable for the purpose of getting a final and proper resolution of this case and we fully endorse what they said to us about that.

14.	 On that footing, this appeal is allowed by a majority and the case is remitted to be reconsidered either by the same or a different constituted tribunal.